Attorney General Holder yesterday announced that the Obama administration would no longer defend the so-called Defence of Marriage act in Federal Court.
This is great news. But it's a little complicated - so I've been reading up on the matter trying to figure out exactly what the Justice Department's new policy now means, and what the implications will be. Lawyers who read this blog (I know you're out there!) please feel free to chime in with further info as I'm just figuring this out as I go along.
The big news here is that the Obama administration believes gays and lesbians DO meet the standard of requiring heightened scrutiny under the equal protection clause of the constitution. Previous court cases have been raised in jurisdications where the courts had previously ruled that this standard should not be applied to sexual minorities - but no such precedent exists in the 2nd Circuit Court, where two new cases are to be tried. Nor has the Supreme Court ever ruled on this specific question.
The Obama administration therefore had no precendent to be bound or guided by in this instance, and the Justice Department therefore had to fashion its legal reasoning from scratch.
Under those circumstances, the position that they take is that section 3 of the Defence of Marriage act - the portion that specifically prevents the Federal government from recognising same sex marriage that are legal within a particular state - is unconstitutional. They will not defend it. But that doesn't mean that it is no longer law.
Until either 1) Congress repeals the law or 2) a Federal court rules the law unconstitutional, the provision will stay on the books.
So there's no immediate effect to this decision. But the government's position does make it far more likely that the law will be struck down by the courts, because it is difficult for anyone other than the federal government to claim that they have legal standing to defend the law.
This is a narrow, legalistic decision on the part of the Obama Justice Department, but the thinking that underlies it is boldly clear:
“It’s a lawyer’s decision based on a careful consideration of the law,” said Paul Smith, head of the Supreme Court and appellate practice at Jenner & Block, and counsel with Gay & Lesbian Advocates & Defenders in a DOMA challenge now pending in the U.S. Court of Appeals for the 1st Circuit.If a court eventually does decide that Section 3 is unconstitutional, as the Obama administration believes, that would greatly complicate the work of the US Government because suddenly we would have a patchwork system in place for federal benefits. Gay couples would have immigration rights in Massachusetts, but not in Ohio. They could have social security survivor benefits in Iowa, but not in Kansas.
“There was only one right answer,” he said. “When you examine the law and which groups need heightened protection under the equal protection clause, you realize that sexual orientation is one of those kinds of discrimination that is suspect. There really was no way for them to defend Section 3 of DOMA because the law doesn’t serve any purpose other than to stigmatize persons.”
But I say - bring on the mess. Because the more people are forced to confront the reality of gay men and woman and their "unreasonable demands" to be treated just like everybody else, the more hollow and pointless the arguments of the opponents seem.